Gitmo's Troubling Afterlife: The Global Consequences of U.S. Detention Policy

Protesters seeking the closure of the Guantanamo Bay detention facility demonstrate outside the White House on January 14, 2011. (Jim Young/Reuters)

Senator
Dianne Feinstein recently commissioned a Government
Accountability Office report identifying prison facilities in the continental
United States suitable for detainees currently held in Guantánamo Bay. After Fox News reported about this document, her office
released a statement saying that the GAO's study "demonstrates that if the political will exists, we could
finally close Guantánamo without
imperiling our national security." Independently, a coalition of advocacy
groups sent President Obama an open letter on
Tuesday urging him to veto the 2013 National Defense Authorization Act if it
impedes the administration's ability to close Guantánamo.

Thus, though U.S. detention policy
was not a contested part of the 2012 election, it may reemerge as a political
issue. Benjamin Wittes of the Brookings Institution noted in his essential
volume Detention and Denial that current
public discussion of the issue represents "denial and obfuscation," in that "we
pretend that noncriminal detention doesn't exist or that we're phasing it out"
rather than facing the daunting task of reforming it. The early stages of this
new round of wrangling over detention policy, unfortunately, seem to represent
another step in the direction of denial rather than toward reform.

At the outset, let's not pretend
that physically moving Guantánamo detainees into the United States
addresses any of the reasons noncriminal detention has been controversial. True,
moving the location of detention removes the physical symbol of Gitmo, which has a great deal of resonance
internationally. But the substance of the policy would not change if detainees
were housed in Illinois rather than Guantánamo. The same laws, rules of evidence, and construction
of presidential power would remain even if the location shifted. Yet this
renewed debate is largely shaping up as an argument over where detainees should be held.

It
is true that President Obama said in a Daily Show
appearance during the course of the presidential campaign, "I still want to
close Guantánamo. We haven't been able to
get that through Congress." But this statement largely masks the evolution in
the president's thinking on the issue of preventive detention, and what closing
Guantánamo would actually mean.

Obama
famously promised during the 2008 presidential campaign that he would close the
Guantánamo facilities, and signed an executive
order upon assuming office requiring their closure within a year. But as Daniel
Klaidman details at length in Kill or Capture, a series of
intense internal debates within the administration ultimately convinced the president
that there was a category of detainees who the administration would have to
continue to detain "because they cannot be prosecuted but are too dangerous to
release." The phenomenon of recidivism among former
Gitmo detainees underscores this concern.

Because
of this shift in Obama's thinking, his showdown with Republicans over Gitmo in
his first term did not involve administration proposals to try or release all
detainees. Rather, the major debate involved whether detainees should be moved to
the Thomson Correctional Center near Thomson, Illinois. (There were also, of
course, a few other controversies related to detention policy, including the
administration's ill-fated attempt to try Khalid Sheikh Mohammed in Manhattan criminal
court.)

The
evolution in Obama's thinking is, in my view, not a bad thing. Despite
overheated rhetoric to the contrary, detention of enemy combatants is a
traditional tool of warfare for obvious reasons -- namely, the concern that a
captured soldier or "unlawful combatant," if released, will return to the fight.
For this reason, the Third Geneva Convention explicitly
contemplates
the detention of enemy combatants until "the cessation of active hostilities."

Thus,
although the public debate about American detention policy has become
hopelessly confused, the real reason this practice has been controversial over
the past decade is not the fact that individuals are being held without trial: That happens routinely during war. Rather, it is the fact that this conflict
presents unique circumstances. For one thing, the enemy doesn't wear a uniform,
so how do you determine who is actually a part of the enemy force?

A
second problem is that of duration. Typically, enemy combatants would be held
until the cessation of hostilities, but what does that mean in the context of
violent non-state actors like al Qaeda? As Geoffrey Corn, a professor at the
South Texas College of Law who previously served as the Army's senior law of
war expert in the Office of the Judge Advocate General, told me in an
interview, "When you go to war with Panama or Iraq, no one is sure at the
outset when it's going to end, but everyone's pretty sure we don't have 30-year
wars anymore." But in the context of violent non-state actors, we cannot be so
confident.

One
option, of course, is ending preventive detention entirely, which is favored by
many of Obama's critics on the left. But that carries second-order consequences
of its own, since al Qaeda has not ended its fight against the United States,
nor is the broader problem of violent non-state actors going to disappear. If
the U.S. doesn't employ preventive detention, doesn't this create a perverse
incentive for killing rather than capturing the opponent? As Wittes writes, "The
increasing prevalence of kill operations rather than captures is probably not
altogether unrelated to the fundamental change in the incentive structure
facing our fighters and covert operatives."

Moreover,
if the U.S. tries to wash its hands of preventive detention, detainees will almost
certainly end up in worse conditions
as a result. The idea has seemingly taken hold that because detention of violent
non-state actors by Western governments is unjustifiable and immoral, "local"
detention is preferable. So, for example, the United States supported recent
military efforts by African Union, Somali, and Kenyan forces to push back the
al Qaeda-aligned Shabaab militant group in southern Somalia. The U.S. did not
take the lead in detaining enemy fighters, and instead its Somali allies did so.
But when one compares, say, detention
conditions in Somalia
to those in Gitmo, the latter is far more humane. If the
U.S. and other Western countries eschew detention when fighting violent
non-state actors, somebody is going to have to do it, and that alternative is
almost certainly going to be worse for the detainees themselves.

What
these second-order consequences point to is the fact that reform of U.S.
detention policy is more vital than moving detainees to other facilities. William
Lietzau, the deputy assistant secretary of defense for rule of law and detainee
policy, has told me that the detention of violent non-state actors is an
unsettled area of law. To Lietzau, defined and developed rules govern the prosecution
of criminals, while the Geneva Conventions govern detention of privileged
belligerents under the law of war. But for unprivileged belligerents, such as violent
non-state actors, the applicable law is largely undefined. Lietzau has even
designed a chart, which has become famous among his colleagues, illustrating
the law's lack of development.

This
is not to say that moving detainees from Guantánamo to the
continental United States is necessarily a bad idea. One could argue that
removing that symbol is important. Further, in the long run, moving the
detainees may actually save money, since everything at Gitmo, from food to
construction materials, must be imported at high cost. But the location of the
detention does not address any substantive concerns.

Though
it will not be easy, working with partners like the International Committee of
the Red Cross to forge a better set of principles and procedures governing the
detention of unprivileged belligerents is far more important than moving the
Gitmo detainees elsewhere. Put simply, violent non-state actors will continue
to challenge the nation-state, so nation-states need a way to deal with
detention in this context. Our current policy of pretending that we have moved
past noncriminal detention all but ensures we will be caught flat-footed the
next time such detention is necessary in a large scale, and thus that the
problems inherent to detaining unprivileged belligerents will have gone unaddressed.

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Daveed Gartenstein-Ross is a senior fellow at the Foundation for Defense of Democracies and the chief executive officer of Valens Global.